Re: KINGSLEY FREDERICK DAVID JAMES; JILL MAXINE JAMES; PETER NORMAN JAMES; DAVID MAXWELL JAMES; ANGUS KINGSLEY JAMES; YALLAMBEE PTY. LTD. and OCKHAM PTY. LTD. And: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED; TAMAR MANAGEMENT PTY. LTD. and JOHN WELLS No. WA G106 of 1984 Trade Practices - Practice and Procedure
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION Toohey J.
CATCHWORDS
Trade Practices - misleading or deceptive conduct - claims under ss. 82 and 87 of Trade Practices Act and accrued jurisdiction - alleged representations as to availability of loan to finance purchase of farming property - summary of principles relating to representations as to future and as to intention or state of mind in s. 52 claims - respondent company found to have contravened s. 52 - whether managing director of company involved in contravention - effect upon claim for damages of 3 year limitation period in s. 82(2) - consideration of when cause of action arose - observations as to when assessment of damages may be referred to Registrar pursuant to Federal Court Rules 0.38 r.1 - whether damages too remote - observations as to test of remoteness applicable to claim under s. 82 - failure of applicants to reduce liabilities by sale of land - whether novus causa interveniens - whether relief sought under s. 87(2)(d) subject to limitation period in s. 82(2) - alleged negligent mis-statement and undue influence - whether Court has jurisdiction to deal with pendent common law claims where trade practices claims statute barred.
Practice and Procedure - no case submission by two of three respondents - election not to call evidence - circumstances in which submission may be made - whether submission may only be made if by all respondents - whether distinction between submission of no case in law or on the evidence - effect of election upon right to cross-examine and final address in respect of case by other respondent - observations on question of non-suit in Federal Court.
The applicants' claim against the first respondent is dismissed with costs.
The applicants' claim against the second and third respondents is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is the unhappy story of a long established farming family at Katanning who in 1980 owned property worth some $4,000,000 but who have now lost much of their assets. They say that their loss was caused by the conduct of the respondents in making statements as to the availability of a loan which they required in order to buy a farm for a price just in excess of $1,000,000. The respondents deny any liability to the applicants.
The statement of claim pleads a number of causes of action. The defences raise matters of fact and of law. The hearing occupied 5 weeks. To understand the nature of the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
James, K.F.D. v. Australia & New Zealand Banking Group Ltd & Ors [1986] FCA 50
Case
[1986] FCA 50
Decision Date
CaseChat Overview and Summary
In the case of James v ANZ Banking Group Ltd, the applicants, James, sought redress against ANZ Banking Group Ltd, its managing director, and a director, alleging misleading or deceptive conduct and common law claims. The dispute arose from alleged representations regarding the availability of a loan to finance the purchase of a farming property. The case was heard in the Federal Court of Australia.
The primary legal issues for the court to determine included whether ANZ Banking Group Ltd had contravened section 52 of the Trade Practices Act by making misleading or deceptive representations, and if the managing director of the company was involved in such contravention. Furthermore, the court needed to assess whether the claim for damages was subject to the three-year limitation period stipulated in section 82(2) of the Act, and if so, when the cause of action arose. The applicants also sought to establish whether damages were too remote and if the court had jurisdiction to consider pendent common law claims where the trade practices claims were statute-barred.
The court found that ANZ Banking Group Ltd had indeed contravened section 52, and that the managing director was not found to be involved in the contravention. The court held that the cause of action for the trade practices claim arose when the misrepresentation was made, not when the damages were suffered. Consequently, the three-year limitation period applied, and the applicants' claim was dismissed as it was filed beyond this period. The court also found that the failure to reduce liabilities by selling the land did not constitute a novus causa interveniens. In relation to the common law claims, the court held that it did not have jurisdiction to hear them because the trade practices claims were statute-barred.
The court dismissed the applicants' claims against all respondents, ordering the applicants to pay the costs of the proceedings. The final orders were settled and entered in accordance with Order 36 of the Federal Court Rules.
Orders
Orders of the court
The applicants' claim against the first respondent is dismissed with costs.
The applicants' claim against the second and third respondents is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.